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Tuesday, June 28, 2011

Update on Debtor's Prisons

A bill has been passed in Washington state to curb the practice of issuing arrest warrants for debtors in civil collection cases. In several states it appears that collectors use this tactic to threaten consumers owing ordinary civil debts with prison. The consumer is issued court process to appear at a civil hearing, and on failing to appear, is then served with a bench warrant. Ordinarily the bench warrant is a means to enforce the order to appear, and should be resolved once the debtor is brought before the court. However some judges seem willing to impose bail once the debtor is arrested and to threaten him or her with jail unless payment is forthcoming. Conveniently, the bail amount is set to coincide with the civil debt. The dubious process concludes with the bail money being paid over to the collection attorney.

This is only one of many ways in which debtors are threatened with imprisonment every day in the United States, despite the notion that debtor's prison was abolished before the Civil War. I wrote previously about an Indiana variant here. Bad check prosecutions and the accompanying "diversion" programs arranged between District Attorneys and collection agencies are another example. These programs have been the subject of some class action litigation. Nonpayment of two special categories of debt, income taxes and child support payments, is explicitly criminalized.

Beyond these examples, one could cite a variety of contexts in which criminal restitution sentences are imposed in what ought to be civil contract or tort disputes, or more broadly, the phenomenon termed the criminalization of poverty (articles here and here.) The new debtors' prisons: a good law review article topic, perhaps . . .